K. Kannan, J. - (1.) THE appeal is filed by the Insurance Company On a plea that Insurance Company can not be made liable when in a petition under Section 163 -A of the Motor Vehicles Act (for short 'the Act'), the Court could not have entertained the petition when the deceased was said to be earning Rs. 35,000/ - per month. The deceased was a pillion rider on a motorcycle driven by his son. The motorcyclist fell down from the motorcycle in his attempt to save themselves from the passing cattle. The pillion rider fell down and suffered fatal injuries. Counsel for the insurance Company argues that the petition is not maintainable under Section 163 -A of the Act and the Court had no power to reduce the income to Rs. 3,000/ - per month when the witness's own assertion was that he was earning Rs. 35,000/ - per month.
(2.) I am prepared to see that petition under Section 163 -A of the Act could not have been possible, if the income of the deceased is more than Rs. 40,000/ - per month. Here was a case where there was a package policy that covered risk for pillion rider as well. The two wheeler fell down by the inability of the driver of the motor cycle to keep a proper balance and it must be taken as negligence of the driver. The fatal injuries suffered by the deceased was to be taken as resultant to a negligent driving of the motor -cyclist. The accident indeed reflects a res ipsa loquitur situation when a person was not careful in his driving. The fatal accidental fall and careful driving would be tautological. I, therefore, would find that the negligence of the motorcyclist as established and the case would be required to be examined under Section 166 of the Act itself, no matter that the petition is under Section 163 -A of the Act. This is only to fend off objections taken by the insurer that petition could not have been filed under Section 163 -A when the income of the deceased was said to be more than Rs. 40,000/ -. In all situations where petition under Section 163 -A is not maintainable, it cannot lead to a consequence of the claim unworkable even under Section 166 of the Act. Before conversion is made, all that has to be seen is whether any further evidence was necessary to consider a plea of negligence which might require to be proved under Section 166 of the Act, if the petition were to be filed under Section 161 of the Act. Having raised the question, whether such a conversion was possible, I would hold that the nature of the accident in the manner that was spoken to itself was proof of negligence and, hence, evidence was not necessary. The insurer must be thanking itself that the assessment to compensation has been made by the Tribunal only taking income to be Rs. 3,000/ - and not in the manner which was set out in claim petition at Rs. 35,000/ - per month. The compensation assessed under such a situation at Rs. 4,21,000/ - is far less than it could have been if the income of the deceased was taken as contended by the claimants. The assessment made by the Tribunal by taking the minimal amount is far too low for intervention in appeal.
(3.) COUNSEL for the Insurance Company relies on a judgment of Hon'ble Supreme Court in New India Assurance Company Ltd. v. Sadanand Mukhi and others, : 2009 A.C.J. 998 where the Supreme Court has held that an accident that took place when a stray dog came in front of the vehicle and accident occurred by the use of the vehicle was found that not by negligence of the driver. This is a case where the owner was making a claim against the insurer as an act only policy. We are now considering the issue of comprehensive policy where liability of pillion rider is fully protected. There can be no rule of law that if an accident takes place when the a stray dog came in front of the vehicle, it can not be taken on account of the driver's negligence. This essentially is a point of fact and if in that case the Supreme Court has taken the view differently, it must be taken in a different legal situation regarding liability of insurer in an Act of policy, I do not, therefore, find any principle of law as laid down by the Hon'ble Supreme in the Sadanand Mukhi's case (supra) as sought to be extended on behalf of the insurer.;